산업재산권 [Journal of Industrial Property]

간행물 정보
  • 자료유형
  • 발행기관
    한국지식재산학회 [Korea Intellectual Property Society]
  • ISSN
  • 간기
  • 수록기간
  • 등재여부
    KCI 등재
  • 주제분류
    사회과학 > 법학
  • 십진분류
    KDC 360 DDC 340
제20호 (7건)

지적재산의 철학에 관한 연구 : 로크의 노동이론을 중심으로


한국지식재산학회 산업재산권 제20호 2006.08 pp.1-28

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The traditional theory of property has a material or visible object, while intellectual property a metaphysical or abstract object. The abstract object is endowed with exclusive rights for certain period, and afterwards it would return to the commons in held to which everybody is accessible. In this regard it shall be a problem what on earth the philosophical justifications for property rights to ideas are. This article is focusing on the philosophical justifications based on Locke's labor theory. Locke begins with the discussion by describing a state of nature in which goods are held in common through a grant from God. The labor adds value to the goods in the state of nature, in which the labor shall be unquestionable property of the laborer, no man except him can have a right to what it is once joined to, at least where there is enough and as good left in common for others. The condition 'enough and as good' seems to correspond with the intellectual property, however, some problems are still left therein. The article deals with the philosophical justifications for intellectual property based on John Locke's labor theory as well as with some problems concerned.



미국 KSR사건을 중심으로 본 진보성 기준의 동태적 분석


한국지식재산학회 산업재산권 제20호 2006.08 pp.29-77

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The criterion of inventive step is even more influential to economy and industry than how it has been thought by normal people. The most important step in a patent system is registration of patents. The substantive requirements for patent registration are novelty, inventive step, and utility in US, and in Korea, industrial applicability replaces the above utility. In addition to these three requirements, publicity based on description requirements can be added as another requirement. Among these requirements, the inventive step is the most essential in deciding whether a patent application is registered or rejected, since industrial applicability or utility is hardly judged negative and novelty does not usually become a key issue in the judgement of conflicting patent registration. Accordingly the KSR case comes to be very important, triggering extraordinary interest in US legal and industrial communities, and it is thought to powerfully effect Korea, concerning the globalization of patent system, pacesetting US leaderships and reliance of Korean economy upon US. The strict application of US CAFC motivation test is considered to be revised to some extent, since CAFC motivation test is not always compatible to the cases recently though it had been adequately applied to the cases of mid-1980s. Therefore, there would be a great change in the US patent system, following the CAFC judgement regarding the KSR case. There are three points to be noticed through this discussion: First, the patent system is a kind of social overhead capital which depends on industrial development and is finally focussed thereon. Second, the objective of the patent system is significantly related to the inventive step of a patent. At last, the criterion of inventive step should evolve in accordance with changes in industries and patent circles, though it is not likely to be easily modified.



TRIPS 협정의 의약품 특허와 공중보건논의에 관한 미국의 입장과 대응방안

강희갑, 박준우

한국지식재산학회 산업재산권 제20호 2006.08 pp.79-108

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This article focuses on the issue of compulsory license of pharmaceutical patents. Article 31 of the TRIPS Agreement allows WTO Member countries compulsory licenses of patented inventions in certain special cases such as extreme emergency. Several countries with severe HIV/AIDS problems, such as Thailand and South Africa attempted to use the compulsory licenses of pharmaceutical patents. The U.S. governments, aggressively lobbied by U.S. pharmaceutical firms, gave political pressure on the Thai and South African governments, insisting that those compulsory licenses were violating article 27 of the TRIPS Agreement, which prohibits Member countries from discriminating field of technologies in patenting inventions. However, human rights groups both in and out of the U.S. gave political pressure on the Clinton Administration, managing to win the victory over the U.S. pharmaceutical firms. After failing to limit the use of compulsory licenses of pharmaceutical patents by developing countries, the U.S. pharmaceutical industry has seemed to give up the TRIPS regime, but chose bilateral negotiation to achieve their goals. This article tries to give some suggestions how to deal with the expected U.S. trade pressures when Korea chose to determine compulsory licenses of pharmaceutical patents.



미국특허법 제271조 (f)항의 역외적용과 소프트웨어 특허


한국지식재산학회 산업재산권 제20호 2006.08 pp.109-130

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In a patent infringement action involving the international distribution of Microsoft's Windows software, the United States Court of Appeals for the Federal Circuit has interpreted 35 U.S.C. § 271(f) as extending infringement liability to foreign computers assembled with copies of software replicated abroad from a US-made master version. In Eolas Techs., Inc. v. Microsoft Corp. AT&T Corp. v. Microsoft Corp., the CAFC determined that the exportation of software code may constitute patent infringement under 271(f) if the software is deemed to be a "component of a patented invention." But it is clear that U.S, patent laws have not of what extraterritorial conduct invokes, and what conduct does not invoke, the U.S. patent infringement status. However, it is noted that the owners of U.S. patents are increasingly attempting to enforce their U.S. patents against activities carried out at least in part, if not entirely, outside the U.S.



상표의 사용에 관한 연구


한국지식재산학회 산업재산권 제20호 2006.08 pp.131-158

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The "use" of a trademark is expressly defined in the Trademark Act (hereinafter, "Act") under Articles 2(1)( vi) and 2(2). Furthermore, in regard to the legal effects that may result from the "use" of a trademark, the Act further stipulates the following: secondary meaning through continuous use [Article 6(2)]; prohibition of registration for a trademark identical or similar to another party's well-known trademark [Articles 7(1)(ix) and (x)]; prohibition of registration of a trademark identical or similar to another party's trademark for a period of one year from the date of expiration of such trademark [Articles 7(1)(viii) and (4)(1)]; definition of direct and indirect infringing activities of a trademark right [Article 66]; cancellation trials against trademark registrations [Articles 73(l)(ii) and (iii)], and so forth. However, in spite of these provisions, the term "use of a trademark" under the Act does not always coincide with the concept of "use" that is commonly understood in society. In addition, if we adopt to the literal definition under the Act, the aim of the Act may not be achieved in certain cases. Therefore, this thesis will examine the various ways of using a trademark in the actual commercial society, by deliberating on several provision of the Act as well as a number of local and foreign precedents pertaining to the use of a trademark As stared, the term "use of a trademark" under the Act and use in actual society do not exactly correspond to each other. Moreover, it seems that no consideration was made in the definition provisions of the Act as to who should be the party to deserve the benefits of the legal effects resulting from the "use of a trademark". For this reason, this dissertation tries to set basic structure on answering the current issues regarding the trademark system by discussing the concept of "use of a trademark". Moreover, we will look into the issue of co-using the legal term "use" and the literal meaning word "use" in a real world context.



앤(Anne)女王法에 관한 著作權法制史的 意義


한국지식재산학회 산업재산권 제20호 2006.08 pp.159-186

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This article reviews the meaning of the statute of anne about the history of copyright law. Invention of typography contributed to circulation and preservation of information, made various influences to the interested parties. The Statute of Anne prohibits the monopoly of typographer, introduces the competition of typography and protects the right of authors. The Statute of Anne also influenced to current copyright law and convaied to international conventions existing.



디지털저작물과 접근권 : 소니사의 PS2의 기술적 조치와 모드칩


한국지식재산학회 산업재산권 제20호 2006.08 pp.187-230

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In digital age, the legal protection of technical measures is a necessary response to effectively protect digital works from the great threat of piracy triggered by digital technology and Internet. However, the excessive protection of technical measures can greatly restrict users' rights such as fair use, first sale doctrine or public domain. Particularly, the legal protection of access control measures in fact gives copyright owners a right to control access to digital works. Therefore, in amending and interpreting related provisions regarding technical protection measures, it is important to ensure an equitable balance between copyright owners and users that copyright law has pursued. In this regard, Korea has taken passive steps to legislate regulations of the technical protection measures. The Computer Program Protection Act of Korea stipulates that 'technical protection measure' means 'any measure to protect a program copyright'. It can arguably be interpreted to protect only right control measures. Nevertheless, the Korean Supreme Court recently found that with respect to the technical measure of Sony Playstation 2 consoles, which can be seen as an access control measure like Game Enhancer, the distribution of Mod chip that circumvents Sony's technical measure was a violation of the ban on distribution of devices disarming technical measures provided in Section 30(2) of the CPPA. However, the Court's decision is required to reconsider because The Acr protecr only copy control measures. In reality, it is not easy to distinguish differences between access control measures and right control measures. Also since many countries have taken steps to legislate regulations of both of them, Korea cannot help considering protecting access control measures. Therefore, This thesis suggests that Korea additionally implement the ban on distribution of devices disarming access control because the most significant threat to copyright owners lies in a preparatory act for circumvention. However, it should not forget to allow users to protect their non- infringing uses by exercising existing exceptions or defenses in copyright law.


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